The Fourth Circuit Court of Appeals heard two oral arguments on ObamaCare today. Recordings of both are available here. Each is about forty-five minutes in length.

The case involving Liberty University was heard first, that involving the Commonwealth of Virginia was heard next. The Commonwealth argument dealt almost exclusively with the standing of Virginia to have its case heard by a federal court, an issue not present in the Liberty case because the Federal Government had not argued that Liberty lacked standing. Hence, the Commonwealth argument touched only tangentially on the powers of the Congress under the Commerce Clause of the Constitution. The Liberty arguments dealt exclusively with those powers.

The purpose of oral argument is not to telegraph the position ultimately to be taken by the judges but rather to provide counsel the opportunity to answer questions the judges may have about the issues before them; the court and the attorneys did well in that respect — the questions were generally well phrased and, despite a bit of occasional stumbling over those cutting against the attorney arguing, pretty well answered. The judges seemed to be quite familiar with the briefs and with the principal cases cited in them — more so than were several of the judges of the D.C. Circuit in some of the cases I argued there. The recordings are well worth listening to in order to get a feel for what a well done oral argument is like.

It struck me that at least two of the judges were less than convinced that the Commonwealth had standing and that although there were perhaps fewer reservations about the constitutionality of the mandatory insurance provisions of ObamaCare (the only substantive issue involved in the Liberty case) they will probably go for a more expansive interpretation of the Commerce Clause than did the trial court.

Given the purpose of oral argument, it is frequently a mistake to try to predict the outcome of a case based merely on what happens at oral argument — particularly without having read the briefs submitted by both sides as well as having at least a recent familiarity with the cases cited. It was obvious from their questions that the judges (and probably their clerks as well) had spent time reading the briefs, the relevant cases and, of course, the opinions of the District Court. I have read the District Court decisions on ObamaCare but not the other documents. Still, if I had to make a guess, it would be that there is about a seventy percent chance that the Commonwealth will be held not to have had standing and that its substantive challenges based on the Commerce Clause will therefore be dismissed. I would also guess that there is about a sixty percent chance that at least a majority of the judges hearing the case will accept an expansive interpretation of the Commerce Clause, with which I very much disagree, in the Liberty case and uphold the statute based on that interpretation. However, “expansive” is by no means a precise term and not all expansive interpretations need produce that result.

It is almost a certainty that the case will go before the Supreme Court, perhaps after an en banc hearing at the Fourth Circuit if a sufficient number of the Fourth Circuit judges desire to have such a hearing. At this point, it seems worthless to try even to guess how the Supreme Court will split or what a majority will hold.